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Compiled FOIA Decisions (Received July-December 1989)

The following is a compilation of Freedom of Information Act decisions received by the Office of Information and Privacy during the months of July through December 1989. OIP is preparing additional compilations of decisions received during previous years. See FOIA Post, "Compilations of FOIA Decisions Now Reach Back Five Years" (posted 8/30/02).


Supreme Court

John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989) (Exemption 7 (threshold): audit documents generated by the Defense Contract Audit Agency in the course of its routine monitoring of a defense contractor and only later "recompiled" into an FBI investigatory file may be shown to have been "compiled" for law enforcement purposes at that later time; the plain words of the statute contain no requirement that the compilation be effected at a specific time, but merely require that documents be compiled for a law enforcement purpose when the response to the FOIA request is made). (This was a 6-3 decision, with Justices Scalia, Marshall, and Stevens dissenting. The plaintiff defense contractor was Grumman Aircraft Corp.)


Appeals Courts

Am. Lumber Corp. v. Nat'l R.R. Passenger Corp., 886 F.2d 50 (3d Cir. 1989) (discovery/FOIA interface: it was not an abuse of discretion for the district court to deny requester's motion to compel production of documents whose existence was discovered by response to their FOIA request, because the FOIA should not be used to circumvent the discovery rules).

Arevalo-Franco v. INS, 889 F.2d 589 (5th Cir. 1989) (venue: although federal venue provisions hold otherwise, the district court for the district in which an alien resides has jurisdiction over FOIA complaints) (status of plaintiff: there is nothing in the FOIA to indicate that Congress intended to distinguish between citizens and aliens).

Benavides v. United States Marshals Serv., No. 89-5060 (D.C. Cir. Sept. 21, 1989) (while the case is substantially affirmed, remands for consideration of requester's motion for attorney fees).

FLRA v. Dep't of the Treasury, 884 F.2d 1446 (D.C. Cir. 1989) (on petitions for review and applications for enforcement of FLRA orders, holds that the Authority erred when it ordered defendant agencies to comply with union's requests, under 5 U.S.C. 7114(b)(4), for disclosure of names and home addresses of agency employees working in relevant bargaining units because release of that information would violate the Privacy Act; the Privacy Act's exception from disclosure required by the FOIA and its exception for disclosure pursuant to a routine use are inapplicable in these cases; citing Reporters Committee and National Association of Retired Federal Employees v. Horner (NARFE), upholds the agency's invocation of FOIA's Exemption 6, because federal employees' privacy interests in their names and home addresses are not outweighed by the nonqualifying public interest in disclosure of this information to labor unions for collective bargaining purposes; in dicta (and in apparent conflict with NARFE's holding that disclosure must itself "directly" shed light on the government's activities), the court concludes that the public interest in a hypothetical investigative reporter being able to contact government employees at home to talk to them about the government's activities is more than "nothing," but still insufficient to overcome their privacy interests) (Judges Ginsburg and Sentelle concurred in separate opinions.).

Fitzgibbon v. Dep't of State, No. 89-5212 (D.C. Cir. Dec. 18, 1989) (government's motion for summary affirmance granted in this Exemption 3 case where the lower court, following CIA v. Sims, upheld the withholding of most of the information pertaining to the regime of Rafael Trujillo in the Dominican Republic).

Formaldehyde Inst. v. HHS, 889 F.2d 1118 (D.C. Cir. 1989) (Exemption 5: reviewers' comments made at the request of an independent publisher regarding a scientific article submitted for publication by a government employee in the course of his official duties are "predecisional" in that they are recommendations regarding suitability for publication which will aid CDC authors who must decide whether and to what extent to edit an article and will assist agency decisionmakers in deciding whether and where to publish an article; the exemption's "inter-agency or intra-agency" threshold was satisfied, even though no "formal relationship" existed between the outside reviewers and HHS, because the "pertinent element is the role" the documents play in the process of agency deliberations; the review letters, written at the request of an independent publisher, are deliberative because the agency regularly relies on these review commentaries in order to make publication decisions).

Forman v. Chapoton, No. 89-6035 (10th Cir. Oct. 31, 1989) (agency records: tax seminar binder generated by a private entity which agency recipients are free to maintain or dispose of at their own discretion is not an agency record because it also is not sufficiently interconnected with the tax policy formation function of the office).

Hudson River Sloop Clearwater, Inc. v. Dep't of the Navy, 891 F.2d 414 (2d Cir. 1989) (Exemption 1 [E.O. 12,356]: the exemption has not been waived when testimony of high-ranking Navy officials before Congress did not disclose the specific information being sought concerning the deployment of nuclear weapons at a New York City port; the statements of a retired admiral do not constitute official disclosure).

Irons v. FBI, 880 F.2d 1446 (1st Cir. 1989) (en banc) (Exemption 7(D): after vacating its earlier opinion, now finds that the requester is not entitled to information furnished to the FBI by confidential sources, beyond what has actually been disclosed in the sources' prior public testimony; public testimony by "confidential sources" cannot waive the FBI's right under the second clause of the exemption to withhold "information furnished by a confidential source" and not actually revealed in that public testimony; the first clause of the exemption, protecting the identity of the confidential source, is not waived insofar as the disclosure of the information not contained in the public testimony could reveal the source's identity; the information here was provided in confidence at the time it was communicated to the FBI; applying the plain meaning of the statute, holds that courts are required to uphold an Exemption 7(D) withholding so long as the statutory criteria are met; indeed, the legislative history suggests that Congress intended a literal interpretation, because the words of the statute say nothing about a waiver doctrine) (Judges Selya and Bownes, concurring in part and dissenting in part, maintained that the scope of the waiver engendered by prior public testimony should be coextensive with the hypothetical scope of relevant cross-examination.).

Joslin v. Dep't of Labor, No. 88-1999 (10th Cir. Oct. 20, 1989) (Exemption 7(D): because OSHA's affidavit was sufficient to prove that the confidentiality requirement of the exemption was met, OSHA was entitled to withhold the names of employee-witnesses who gave formal statements without submitting additional affidavits from those individuals; on remand, instructs the district court to examine the confidential sources' undisclosed statements in camera to determine whether redaction may effectively be accomplished while still protecting the confidentiality of the source) (Exemption 7(C): in the context of an OSHA investigation into possible health and safety violations of an employer, the agency may withhold the identities of employee-witnesses who did not give formal statements, the home addresses of injured workers, and the names and addresses of references contained in resumés) (attorney fees: because plaintiffs have not "substantially prevailed," they are not entitled to attorney fees).

Long v. IRS, 891 F.2d 222 (9th Cir. 1989) (Exemption 3 [26 U.S.C. 6103]: deletion of taxpayer-identifying portions of check sheets does not alter the information's protected status as "return information"; the district court did not err in holding that the release of full or partial zip code information, in combination with the information already released, would create a significant risk of identification of taxpayers) (attorney fees: fees denied because requesters have not "substantially prevailed" on appeal).

Media Access Project v. FCC, 883 F.2d 1063 (D.C. Cir. 1989) (jurisdiction: on petition for review from an order of the FCC, holds that the court has jurisdiction to hear this case because the Commission invoked the Communications Act for concurrent authority for the fee waiver regulations at issue and the Court of Appeals has exclusive jurisdiction to review final Commission orders) (Judge Ginsburg dissents) (fees (Reform Act): the Commission's verbatim adoption of OMB's guidelines defining the preferred categories for assessment of search fees is fully authorized by the Reform Act) (case or controversy: rejects petitioners' facial challenge of the Commissions's fee regulations because their claim that they would be denied preferred fee status if they submitted a FOIA request is not ripe for judicial review).

Mobil Oil Corp. v. EPA, 879 F.2d 698 (9th Cir. 1989) (waiver: finding a waiver of exemption for documents based on the release of related documents to this plaintiff or to a third party would be contrary to the case law on waiver and to the policies underlying the FOIA; release to a third party of attorney notes taken during an enforcement conference does not waive any exemption for a document consisting of attorney notes taken during another enforcement conference held at a later date; when defendant agency prepared a summary of penalty calculations for release to Mobil which expressed the defendant agency's public stance toward litigation, it did not waive any exemption for another summary of penalty calculations that the agency prepared for its internal use; claim of exemption for a 2-page penalty worksheet which was an attachment to a litigation report is not waived by the release of related documents).

Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873 (D.C. Cir. 1989) (Exemption 6: applying the holding in Reporters Committee that the identity of the requester is irrelevant to the public interest in disclosure, finds that the identity of the requesting party is equally irrelevant to the privacy interest side of the balancing test; disclosure of addresses or names and addresses of retired or disabled federal employee annuitants would be a significant invasion of personal privacy (clarifying that the "secondary effect" language of Arieff v. Department of the Navy should not be taken literally); release of the federal annuitant mailing list may further the cause of a public interest group, but it would not shed light on the workings of the federal government).

Nat'l Ass'n of Retired Fed. Employees v. Newman, No. 86-5446 (D.C. Cir. Sept. 13, 1989) (denies plaintiff's petition for rehearing en banc in this FOIA case where the court had held that the disclosure of the names and home addresses of retired or disabled federal employee annuitants would be a significant invasion of personal privacy, and that it would not shed light on the workings of the federal government; Chief Judge Wald filed a separate statement agreeing with Judge R. B. Ginsburg's concurring opinion in FLRA v. Department of the Treasury suggesting legislative or further Supreme Court review of the entire area, particularly whether the balancing test set out in Reporters Committee may not be appropriate for nonlaw enforcement records with limited potential for privacy invasion).

Nat'l Sec. Archive v. DOD, 880 F.2d 1381 (D.C. Cir. 1989) (fees (Reform Act): a "non-profit private research institution and library" that disseminates information to the public is not an "educational institution" under the FOIA; the Archive is a "representative of the news media," because it "gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience"; when a member of the news media seeks records to support its news dissemination function, it shall not be considered a request that is for a "commercial" purpose under the FOIA).

North v. Walsh, 881 F.2d 1088 (D.C. Cir. 1989) (res judicata: even if plaintiff's demand for documents under FOIA and his subpoena for the same documents during the grand jury proceeding comprise the same "claim," claim preclusion does not bar his present FOIA action because he could not have invoked the FOIA during the grand jury proceeding; nor, under these circumstances, must a litigant file a separate FOIA action and move to consolidate that suit with the non-FOIA suit in order to avert the risk of claim preclusion) (discovery/FOIA interface: the general rule of issue preclusion does not bar plaintiff's FOIA action, in that merely because a document may be unavailable through discovery does not necessarily mean that it will be exempt from disclosure under the FOIA) (Exemption 7(A): the fact that a defendant in a separate, ongoing criminal proceeding may obtain documents through the FOIA that he could not procure through discovery, does not in and of itself constitute interference with an ongoing law enforcement proceeding, the government must demonstrate that disclosure in advance would genuinely harm or impede an enforcement proceeding).

Pollack v. Bureau of Prisons, 879 F.2d 406 (8th Cir. 1989) (case remanded because the district court has not ruled on requester's particularized request for documents and to determine whether other records the requester seeks exist in locations other than the "Central File").

Texas v. ICC, 889 F.2d 59 (5th Cir. 1989) (Exemption 5: the "functional test" notwithstanding, holds that the "intra-agency" requirement is not met by information provided to the agency by a private party that did not (as the court characterized it) stand in any consultative or advisory role to the government; where documents were not disclosed to outside parties, the attorney work-product privilege was not waived).

Vennes v. IRS, No. 89-5136 (8th Cir. Oct. 13, 1989) (unpublished memorandum), 890 F.2d 419 (8th Cir. 1989) (table cite) (the district court correctly determined that the IRS was entitled to summary judgment in this FOIA case where the IRS released the information at issue and agreed to release the remaining video and audio tapes if plaintiff would agree to pay the applicable fee or obtain a fee waiver).


District Courts

Abernathy v. Yeutter, 725 F. Supp. 459 (W.D. Mo. 1989) (Federal Register publication: agency's method of computing food stamp over-issuance claims did not reflect a change which would necessitate compliance with the subsection (a)(1) publication requirements of the FOIA, but rather established that the Secretary's method of calculation is national policy).

Access Reports v. Dep't of Justice, No. 88-1433 (D.D.C. Dec. 4, 1989) (Exemption 5: in order to prove that a document is "predecisional," the defendant agency must be able to pinpoint an agency decision or policy to which the document contributed; the document in question is a "resource opinion" not exempt from disclosure because it addressed the applicability of an already adopted policy to a certain set of facts and its possible use beyond that was merely speculative).

Albuquerque Publ'g Co. v. Dep't of Justice, 726 F. Supp. 851 (D.D.C. 1989) (Exemption 2: protects informant and violator identifier codes because the public has no legitimate interest in gaining information that could lead to the impairment of DEA investigations) (Exemption 7(C): sustains defendant agency's claim with respect to information that would identify third parties (accomplices, other defendants, informants, or innocent third parties) because this information is irrelevant to an inquiry into the way DEA conducts its business) (Exemption 7(D): exemption protects material that would reveal the identities of state and local law enforcement officials who acted as confidential sources and the information they provided in confidence, even where the entire document had to be withheld) (Exemption 7(E): because the government's affidavit provides insufficient information, the court will examine the documents in camera to determine whether the exemption was properly invoked to protect criminal investigative techniques) (Exemption 7(F): protects identities of DEA Special Agents, Supervisory Special Agents, and other law enforcement officers who "routinely approach and associate" with "known violators") ("reasonably segregable": the agency was justified in withholding certain documents in their entireties, because they met the Exemption 7 burden that disclosure "could reasonably be expected" to result in the specified harm) (Vaughn Index: the format of the agency's Indices and affidavits accomplish the function of a Vaughn Index, as found in Keys v. Department of Justice) (adequacy of search: requester's assertions as to the adequacy of DEA's search are insufficient to raise a material question of fact, even where material responsive to its FOIA request has been destroyed in accordance with routine DEA procedure).

Allen v. DOD, No. 81-2543 (D.D.C. Oct. 10, 1989) (attorney fees: grants plaintiff $30,869.50 in interim attorney fees; finds that 8.2 hours represents time reasonably spent by plaintiff in working on a brief that was largely duplicative of a brief filed in a similar case; without expressing a view as to whether contingency enhancements are appropriate in FOIA cases, defers ruling on whether plaintiff would meet the general standard for contingency enhancements if this were a final, rather than an interim, award).

Am. Centennial Ins. Co. v. EEOC, 722 F. Supp. 180 (D.N.J. 1989) (Exemption 3 [42 U.S.C. 2000e-5(b), 2000e-8(e)]: satisfy both prongs of Exemption 3; protect carrier insurance companies' files relating to a Title VII violation charge against Campbell Soup, Inc., alleging sex and race discrimination in its employment practices) (Vaughn Index: a Vaughn Index is unnecessary in this instance because the "claimed FOIA exemption consists of a generic exclusion, dependent upon the category of records rather than the subject matter which each individual record contains").

Archer v. Cirrincione, 722 F. Supp. 1118 (S.D.N.Y. 1989) (Exemption 5: memoranda, drafts, and informal written analyses of a regulation preparatory to the generation of a final rule, as well as draft responses to public comments, are predecisionsal and deliberative; the policy concerns of Exemption 5 apply regardless of whether certain predecisionsl steps are required by law or not; release of a draft would lead to public confusion on an important policy matter) (disciplinary proceedings: because the court rules that the requested documents were properly withheld by the agency, no hearing will take place on the defendant agency's conduct in processing plaintiff's FOIA request).

Armstrong v. Bush, No. 89-0142 (D.D.C. Sept. 15, 1989) (the Administrative Procedure Act empowers a private plaintiff to challenge, under the Presidential Records Act and the Federal Records Act, a decision by the President to delete the entire contents of an electronic message system maintained by various entities within the Executive Office of the President; there was no FOIA case or controversy because of the government's agreement not to destroy the putative "records").

Assassination Archives & Research Ctr., Inc. v. CIA, 720 F. Supp. 217 (D.D.C. 1989) (adequacy of search: defendant agency's affidavit demonstrates that, given the breadth of plaintiff's requests, the CIA's search met the Weisberg v. Department of Justice standard for an adequate search within the constraints of the CIA's document retrieval system) (Exemption 5: the deliberative process privilege protects, in its entirety, a memorandum for the record which reflects the predecisional process whereby senior CIA officials were apprised of congressional inquiries into United States intelligence agency's support provided to the Warren commission, including opinions expressed concerning CIA policy matters generated by the congressional inquiries) (Exemption 6: protects a summary of personal information contained in a security file, compiled for purposes of determining suitability for access to classified information) (Exemption 1 [E.O. 12,356] and 3 [50 U.S.C. 403(d)(3), 403g]: deferring to defendant agency's judgment that the sensitivity of "old" information has not diminished with age, protects intelligence sources and methods, cryptonyms, information which would reveal covert CIA field installations, and foreign intelligence activities, employee names, official titles, and organizational data; distinguishes this case from King v. Department of Justice, noting that this case is being decided under E.O. 12,356 which is more protective of classified information than its predecessor and that this case does not concern the Department of Justice but rather an intelligence agency that cannot perform its function unless its sources are secure in the knowledge that their identities will be protected).

Barkett v. Dep't of Justice, No. 86-2029 (D.D.C. July 18, 1989) (Exemption 2: the release of NADDIS and G-DEP codes could very likely result in the identification of ongoing narcotics investigations and could place the lives of undercover DEA agents in extreme peril) (Exemption 3 [Rule 6(e)]: the release of detailed business records that were subpoenaed by a grand jury would circumvent the broad protective boundary of this rule) (Exemption 7 (threshold): the information in a DEA investigative file clearly satisfies the threshold requirements) (Exemption 7(A): release of information in a DEA investigative file would interfere with the ongoing investigation and enable a fugitive to thwart capture) (Exemption 7(C): approves the withholding of third-party names and other personal confidential information) (Exemption 7(D): to require the disclosure of names of state and local law enforcement agencies, commercial institutions, and private citizens who supply information to DEA on a routine basis would not only lead to the discovery of the sources' identities, but would also reduce the quantity and quality of information received by law enforcement agencies) (Exemption 7(E): the disclosure of a longstanding, successfully proven law enforcement technique used in connection with the purchase of illegal narcotics and not commonly known to the public would assist drug violators in evading detection and apprehension) (Exemption 7(F): disclosure of names of DEA Special Agents, Supervisory Special Agents, and other law enforcement officers not only would have an adverse effect on the operations of DEA, it also would place the lives of the law enforcement officers in grave peril).

Beck v. Dep't of Justice, No. 87-3356 (D.D.C. Nov. 7, 1989) (Vaughn Index: defendant agencies need not prepare a Vaughn Index, because their detailed affidavits provide the court with a more than adequate basis on which to make a de novo review) (in camera inspection: court need not review the documents in camera, because the defendant agencies' detailed affidavits provide the court with an adequate basis on which to make a reasoned de novo review) (adequacy of search: holds that defendant agencies conducted an adequate search, even though certain documents were not found and plaintiff received documents at different times) (issue preclusion: under the doctrine of federal comity, the court may decline judgment on an issue which plaintiff properly put before another district court, even though that other litigation was initiated after the instant case) (Exemption 2 "low": protects informant symbol numbers, other source-identifying information, and purely administrative markings such as file numbers) (Exemption 7 (threshold): the threshold test is easily met by files containing information on narcotics investigations) (Exemption 7(C): protects names of FBI Special Agents and nonagent FBI personnel, because the public interest in disclosure is clearly minimal; exemption protects names of subjects of investigative interest) (Exemption 7(D): informants provided information to the FBI under circumstances from which assurances of confidentiality could reasonably be inferred; public testimony by a confidential source does not waive the agency's right to invoke the exemption with respect to information not disclosed in the source's prior testimony or even to information that has been disclosed during trial; exemption protects confidential sources' identities or symbol numbers and the information they provided to the FBI; FBI's investigative efforts would be seriously frustrated if they were forced to reveal their confidential sources) (Exemption 7(F): exemption protects the identities of DEA Special Agents whose names appeared in FBI files).

Beck v. Dep't of the Treasury, No. 88-0493 (D.D.C. Nov. 8, 1989) (Vaughn Index: defendant agencies need not prepare a Vaughn Index, because their detailed affidavits are sufficient to allow the court to make a de novo review) (in camera inspection: court need not examine the documents in camera, because the defendant agencies' detailed affidavits provide the court with an adequate basis on which to make a reasoned de novo review) (duty to disclose: plaintiff may not circumvent administrative procedures by adding a new FOIA request to a case that is already in litigation) (adequacy of search: search is adequate when defendant agencies have conducted a series of thorough searches in response to numerous requests, coordinating efforts of several regional and field offices; defendant agencies' decision to submit a single, detailed affidavit for searches conducted at 5 regional and field offices was reasonable and served to clarify a complicated administrative record) (Exemption 2 "low": protects informant codes, other source-identifying information, and administrative markings; protects computer access codes, system identification numbers, and case and file numbers concerning the maintenance and security of TECS) (Exemption 7 (threshold): the threshold requirement is satisfied because the records were compiled by the Customs Service in the performance of its statutory responsibilities for the enforcement of various federal statutes) (Exemption 7(C): exemption protects from disclosure the identities of Customs officials and other law enforcement personnel, subjects of investigative interest, and third-party names) (Exemption 7(D): public testimony by a confidential source does not waive an agency's right to invoke the exemption with respect to information not disclosed in the source's prior testimony or even to information that has been disclosed during trial; disclosing the identities of confidential sources could adversely affect the Customs Service's future ability to collect important information for its law enforcement functions) (Exemption 7(E): the Customs Service may withhold documents, including a map, which if disclosed would reveal a surveillance technique used in regard to smuggling investigations) (while partially granting defendant agencies' motion for summary judgment, orders certain regional offices that failed to process 2 of plaintiff's FOIA requests to do so now on an expedited basis, and submit appropriate affidavits reflecting the scope and results of those searches).

Beckette v. United States Postal Serv., No. 88-802 (E.D. Va. July 30, 1989) (publication: Postal Service's personnel regulations and plaintiff's union contract are not rules of general applicability that must be published under the FOIA).

Bonner v. Dep't of State, 724 F. Supp. 1028 (D.D.C. 1989) (Vaughn Index: the release of 19 documents that were to be included in the defendant agency's sample index does not destroy the validity of the index, instead it indicates that, due to the passage of time, formerly classified information now can safely be released) (Exemption 1 [E.O. 12,356]: when an agency receives a FOIA request, it may review prior classifications and reclassify information under the current executive order; release of documents concerning United States military bases in the Philippines, biographic information on foreign officials, confidential assessments of various political and economic situations, and confidential information from foreign sources would impair the future ability of the United States to achieve foreign policy objectives in the Philippines and elsewhere).

Bowen v. FDA, No. C88-5111 (N.D. Cal. Nov. 30, 1989) (summary judgment: agency affidavit and the accompanying Vaughn Index adequately explain the statutory basis for withholding information under Exemptions 4, 6, 7(A), 7(C), 7(D), and 7(E); summary judgment therefore granted on all of the exemptions) (waiver of exemption: an agency is not required to address the application of exemptions in its answer).

Cal-Almond, Inc. v. USDA, No. F89-574 (E.D. Cal. Dec. 8, 1989) (Exemption 3 [Pub. L. No. 100-460, 630 (not to be codified)]: the Agriculture Appropriations Act prohibits the disclosure of the names and addresses of every almond grower in the State of California for the 1988-89 crop year).

Commodity News Serv. v. Farm Credit Admin., No. 88-3146, 1989 U.S. Dist. LEXIS 8848 (D.D.C. July 31, 1989) (Exemption 6: releases the personal resumé of the principal of a receiver company and the firm's statement of qualifications because there is a clear public interest in the qualifications and experience of persons selected as receivers for failed banks within the farm credit system; sample proposals prepared by the principal for previous employers do not meet the threshold test of the exemption; withholds personal resume and firm's qualifications of unsuccessful candidate for receivership because such information is unnecessary for the public to evaluate the competence of persons selected for the receivership; protects notes taken during unsuccessful candidate's interview and notes of conversations with this person's references) (Exemption 5: defendant agency must file an affidavit detailing which portions of notes taken during successful candidate's interview and notes of conversations with this person's references it seeks to protect under the deliberative process privilege; because defendant agency failed to describe which nonexempt portions of the document were "inextricably intertwined" with exempt portions, court orders release of the information) (Exemption 2: defendant agency failed to demonstrate how the release of a document that specifies the steps to be followed in selecting a receiver would "risk circumvention of agency regulations and statutes").

Cutler v. FBI, No. 89-0618 (D.D.C. July 31, 1989) (case dismissed where plaintiff failed to respond to the defendant agency's motion for summary judgment).

Dentico v. United States, No. 83-8534 (S.D.N.Y. July 10, 1989) (summary judgment: after in camera review of all documents withheld in whole or in part, holds that the defendant agencies properly withheld information under Exemptions 3, 6, and 7).

Dow Jones & Co. v. Dep't of Justice, 724 F. Supp. 985 (D.D.C. 1989) (Exemption 5: inter-agency requirement is met by a recommendation letter sent to Congress by the Department of Justice detailing its investigation of a Member of Congress after deciding not to prosecute, because applying a strict reading of the threshold language would frustrate the purposes of the exemption which was designed by Congress to protect the deliberative processes of the government rather than just the executive branch; the nondisclosed factual portions of the recommendation letter summarize the evidence of alleged misconduct of a public official and are "inextricably intertwined" with the decision of whether to file an ethics charge; the attorney work-product privilege does not protect the referral letter because it was not prepared in anticipation of litigation) (Exemption 7(C): prior disclosure in a grand jury disclosure matter which revealed that a public official was the subject of a criminal investigation and the general contours of that investigation does not destroy the public official's present privacy interest; furthermore, because the public interest in disclosure arguably has been satisfied by the prior disclosure, plaintiff must show that there is a public interest in the disclosure of specific information being withheld) (Exemption 7(D): after in camera inspection, holds that an implied promise of confidentiality can be inferred for the primary witness and the primary witness's associates, because each had an apparent conflict in allegiance; an implied promise of confidentiality cannot be inferred for other sources who had no personal association with the public official).

Ferguson v. FBI, 722 F. Supp. 1137 (S.D.N.Y. 1989) ("exceptional circumstances"/"due diligence": faced with a potential conflict among the defendant agency's satisfaction of the Open America test, respect for prisoner-plaintiff's liberty interests, and the statutory time limits, the court follows Mayock v. INS and holds that the FBI has insufficiently considered the presence of an urgent need and is not entitled to a further extension; orders the defendant agency to give immediate priority to the production of those records most needed by the plaintiff, other high priority documents must be processed within 85 days, and the remaining documents may be processed on a "first-in, first-out" system) (Vaughn Index: the defendant agency must produce a Vaughn Index for each of plaintiff's 2 "high priority" FOIA requests within 32 days of the completion of the document processing; plaintiff's request for a Vaughn Index for his April 1989 FOIA request is premature).

Fitzgibbon v. AID, 724 F. Supp. 1048 (D.D.C. 1989) (fee waiver (Reform Act): professional writer who is preparing a history of the FOIA and similar legislation abroad does not have a commercial interest in obtaining defendant agencies' annual reports on the implementation of the FOIA; annual reports, which were submitted to Congress and are available in agencies' public reading rooms, were not "in the public domain," and plaintiff's publication of this information is likely to "contribute significantly to the public understanding" of the FOIA; fee waiver granted).

Ford v. Dep't of the Treasury, No. C89-151 (W.D. Wash. Nov. 14, 1989) (duty to create a record: notice of tax assessment that plaintiff seeks does not exist; the IRS maintains this information in a computer-generated document that contains only summarized data) (jurisdiction: court lacks jurisdiction when plaintiff has received all existing documents responsive to his FOIA request).

Found. for Fair Contracting v. Dep't of the Interior, No. S89-071 (E.D. Cal. Sept. 25, 1989) (Exemption 6: defendant must disclose deductions for fringe benefits, fringe benefit payments, and net wages of employees appearing on certified payroll records of Western Utilities Contractors project at a national park).

Frankenberry v. Dep't of Justice, No. 87-3284 (D.D.C. Sept. 20, 1989) (fee waiver (Reform Act): where plaintiff seeks information to prove his innocence of murder charges, holds that the information is personal and release would not significantly enhance the public's understanding of the operations of the government; plaintiff has not identified how he will disseminate the information).

Frets v. Dep't of Transp., No. 88-0404-W-9, 1989 WL 222608 (W.D. Mo. Dec. 14, 1989) (Exemption 7 (threshold): the threshold requirement is not met by records compiled by the FAA in the course of an investigation of alleged drug use by air traffic controllers during off-duty hours) (Exemption 6: there is a public interest in the nondisclosure of records concerning the FAA's efforts to monitor the performance of air traffic controllers, because disclosure could threaten the lives of the traveling public; confidential informants could be identified easily by their handwritten statements, even if their names were redacted; exemption protects third-party names; each plaintiff may receive a copy of his own Report of Investigation, a copy of his own statement made to the FAA Special Agents in the course of the drug-use investigation, and a copy of his own urinalysis report; nonplaintiffs' urinalysis reports may be released after the names and dates have been redacted; the response of FAA Special Agents to charges made by plaintiff also may be released) ("reasonably segregable": if the first document is redacted to protect the identity of a confidential source, it will be meaningless; second document may be redacted easily and released) (FOIA/PA interface: although subsection (d)(5) of the Privacy Act, relating to matters prepared in anticipation of a civil proceeding, exempts all the requested documents from disclosure, certain documents must be released under the FOIA) (disciplinary proceedings: agency personnel did not act arbitrarily and capriciously in refusing to divulge the records at issue).

Garside v. Webster, 733 F. Supp. 1142 (S.D. Ohio 1989) (fees: defendant agency must reimburse plaintiff $26.10 in duplication fees for documents that were outside the scope of his request) (disciplinary proceedings: even though defendant agency made errors in locating and processing records and in estimating duplication costs, its confusion was reasonable because plaintiff requested information that involved at least 8 bank robberies) (waiver of exemption: prior release of some material, either through inadvertence or as part of another proceeding, does not result in a waiver of any of the exemptions) (Exemption 7(C): in the absence of an overriding public interest, the exemption protects names and information concerning third parties) (Exemptions 7(C) and 7(D): protect the names of FBI Special Agents, the names of informants and other third parties, and informant files) (Exemptions 6 and 7(C): protect source symbol numbers, informant file numbers, and the names of FBI Special Agents) (improper withholding: contrary to the government's representations, less than the entireties of certain files were furnished to plaintiff at his criminal trial, so the public interest now demands that the government make good its representations and release all the information, without exemption).

Gibbs v. FBI, No. 88-0428 (D.D.C. Sept. 27, 1989) (Exemption 2: protects informant file numbers and informant symbol numbers) (Exemption 7(C): withholds informant names, information concerning subjects of investigative interest, and information concerning third parties, because it is "generally recognized" that the mention of an individual's name in connection with a law enforcement investigation is potentially stigmatizing; the personal privacy interests of FBI personnel and state and local law enforcement officers are protected by the exemption) (Exemption 7(D): release of names of or information provided by confidential sources would severely hinder the FBI in its law enforcement investigations) (Exemption 7(E): withholds information concerning security techniques used by banks and information collected by the FBI subsequent to a bank robbery and maintained for future reference).

Hall v. Dep't of Justice, No. 87-0474 (D.D.C. June 20, 1989) (magistrate's final recommendation) (Exemption 7 (threshold): the information at issue was compiled for a law enforcement purpose because it was gathered in the course of a criminal investigation into the whereabouts of an escaped fugitive) (Exemption 7(D): information compiled in the course of a criminal investigation to apprehend an escaped fugitive was provided to the defendant agency with, "at the very least," the expectation of confidentiality) (Exemption 7(C): third parties mentioned in an investigatory file and third parties investigated as leads have an interest in the nondisclosure of their involvement in the investigation) (Exemption 7(E): the "totality of investigatory methods" referred to in an investigatory files constitutes a "technique" which merits protection from disclosure; withholds investigatory techniques employed in the criminal investigation of an escaped fugitive; withholds internal agency "checklists" of investigative techniques and procedures used during the investigation, as well as information concerning these techniques contained in correspondence) ("reasonably segregable": in a FOIA request where the defendants released 336 pages and withheld 2409 pages, finds that the agency has made clear that "no useful information can be segregated from the exempt matter"), adopted (D.D.C. July 31, 1989).

Hampel v. Autoridad de Eneraia Electrica, 716 F. Supp. 52 (D.P.R. 1989) (plaintiff's FOIA claim is dismissed for failure to exhaust administrative remedies).

Hinton v. FBI, No. 81-0740 (E.D. Pa. Oct. 30, 1989) (Vaughn Index: after having produced a sample Vaughn Index, defendant agency is ordered to prepare a coded Vaughn Index of all documents (over 8000) that are responsive to plaintiff's FOIA request and are withheld in whole or in part).

Housley v. Dep't of Justice, No. 89-0436 (D.D.C. Nov. 13, 1989) (transfer of FOIA case: transfers this FOIA case to the District of Nevada, because that is where the documents allegedly were withheld from plaintiff).

Jowett, Inc. v. Dep't of the Navy, 729 F. Supp. 871 (D.D.C. 1989) (Exemption 5: plaintiff cannot demonstrate that audit reports are "predecisional" under the FOIA by using the definition of "decision" from another statute; audit reports from the Defense Contract Audit Agency lack the indicia of finality because the agency does not have the authority to make final decisions on government contractors' equitable adjustment claims; audit reports are advisory because they were prepared at the request of one contracting officer for the express purpose of advising him as to the merits of an equitable adjustment claim; even if the Navy's alleged delay could be construed as a "decision," predecisional material does not lose its protection because it has not been expressly incorporated into that "decision"; disclosure of audit reports while the Navy is in the midst of evaluating an equitable adjustment claim would reveal the deliberative process; a party engaged in negotiations with a government agency should not be permitted to utilize the FOIA to force the agency to reveal the information it is using to arrive at its position; redacted factual portions (numbers and mathematical calculations) of audit reports are "inextricably intertwined" with the Navy's deliberative process).

Jurosek v. FBI, No. 88-60309 (E.D. Mich. Aug. 28, 1989) (Exemption 7(D): protects documents that the FBI received from a confidential source, even though plaintiff was the author and original source of those documents).

KTVK v. DEA, No. 89-379, 1989 U.S. Dist. LEXIS 10348 (D. Ariz. Aug. 30, 1989) (Exemption 2 "high": the government made no showing that the release of an audiotape from a "user accountability" seminar would enable drug users to avoid detection and arrest) (Exemption 5: audiotape from a "user accountability" seminar did not in any way reveal the deliberative process within the DEA; waiver occurs when communications are disclosed to state and local officials).

Kyle v. United States, No. 86-3450 (D. Mass. Nov. 16, 1989) (adequacy of search: grants the defendant agency's motion for summary judgment because its search for documents relating to the testing of a particular lot of polio vaccine satisfied the requirements of the FOIA).

Lawyers Comm. for Human Rights v. INS, 721 F. Supp. 552 (S.D.N.Y. 1989) (Exemption 1 [E.O. 12,356]: FBI properly withheld the file numbers used to identity specific intelligence activities, the targets of particular intelligence activities, designations as to the level and/or focus of investigatory activities, and phrases indicating geographical locations and their assigned numerical designations; although each detailed piece of information alone may not create a sufficient threat to national security, used together or in conjunction with other information obtained by a foreign intelligence service, could enhance that service's ability to appraise American intelligence activities; the CIA correctly withheld (under Exemptions 1 and 3) names of CIA components within the Directorate of Operations and the names and locations of covert field installations because their discovery could create a threat to national security; finding that the CIA's affidavits are otherwise insufficiently detailed, denies the defendant agency's request to submit in camera affidavits and orders them to prepare a supplementary affidavit because it is in the plaintiff's and the general public's best interest to create as full a public record as possible; the State Department properly withheld documents regarding foreign information sources and exchanges and the conduct of foreign affairs and activities, even when these documents consist of inter-agency exchanges; Department must release 2 documents that already have been released to the public and portions of documents which have been discussed in "off-the-record" exchanges with the press; because of conclusory affidavits, Department must submit remaining documents to the court for in camera review) (Exemption 3 [8 U.S.C. 1202(f)]: orders in camera inspection of the documents mentioning issuance or denial of visas, because the affidavit does not adequately describe the documents or the propriety of the exemption claim) (Exemption 7(C): approves withholding of FBI Special Agents' names and initials and support staffs' names, finding that law enforcement personnel have a particularly strong interest in maintaining their privacy in the present action due to the divided public opinion and heightened interest in the case; withholds names of subjects of investigative interest; orders further affidavits concerning individuals listed in INS's Lookout Book, because the public has a great interest in knowing the manner in which government agencies decide to exclude aliens, particularly when ideological grounds are involved) (Exemptions 7(D) and 7(E): orders in camera review of documents, because the FBI did not adequately demonstrate the necessity for withholding names of confidential sources or law enforcement techniques, and discovery would compromise the secrecy required) (adequacy of search: the FBI's search was adequate, because an agency's FOIA search need only be reasonably designed to identify and locate responsive documents; the State Department must submit further affidavits detailing the adequacy of its search and directly responding to plaintiff's concerns) (Exemption 5: the State Department correctly applied the deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege to memoranda and letters; orders agency to release any segregable factual portions of these documents) (Exemption 6: names of State Department's officers and staff members were improperly withheld, because disclosure would merely establish a professional relationship with agency business) (adequacy of affidavit: due to the vagueness of INS's affidavits, orders in camera inspection of most of the documents for which exemptions were claimed).

Leeds v. Quigg, No. 89-0635 (D.D.C. Sept. 11, 1989) (Exemption 5: the deliberative process privilege protects inter-agency documents concerned with plaintiff's personnel problems with the agency and which led to his termination from federal service; exemption protects attorney-client communications) (interaction of (a)(2) & (a)(3): the information requested concerns issued patents, which, as publicly available documents, are not subject to the FOIA).

Linder v. FBI, No. 89-345 (D. Or. Oct. 31, 1989) (in camera affidavit: after conducting an in camera review of classified declarations, holds that information was properly withheld under Exemptions 1 [E.O. 12,356], 7(C), and 7(D)).

Linneman v. FBI, No. 89-0505 (D.D.C. Nov. 8, 1989) (pro se litigant: a pro se litigant living overseas where mail is less reliable deserves further explanation of the consequences of not responding to the government's motion for summary judgment).

Massachusetts v. HHS, 727 F. Supp. 35 (D. Mass. 1989) (Exemption 2 "high": in the absence of more explicit guidance from the First Circuit, follows Crooker v. ATF and adopts its reasoning; administrative manuals that instruct federal agency operatives in determining whether a state meets the Family Support Administration's qualifications for a waiver of a reduction in federal financial participation are predominantly internal; the second prong of the exemption does not apply when it is Massachusetts itself that seeks the information -- the FOIA cannot be interpreted in such a way as to presumptively brand a sovereign state or its officials as likely to circumvent federal law) (Exemption 5: compilations of factual data relate to past decisions, so they are merely the agency analyses and not "predecisional"/advisory material about a pending matter; the exemption does not protect an analysis of states' petitions for waiver of reduction of federal participation in AFDC programs, a summary of these petitions' supporting documentation, and a summary and comparative evaluation of states' requests for "extraordinary circumstances" waiver; the government has not demonstrated that marginalia should be withheld under the deliberative process privilege).

McNaughton v. SEC, No. 88-1836 (N.D. Ga. July 14, 1989) (Exemption 7(C): following Reporters Committee, withholds names and addresses of subjects of investigative interest from files generated by the SEC during its investigation of illegal insider trading of Doubleday stock).

Morgan v. Dep't of Justice, No. 89-0196 (D.D.C. Oct. 13, 1989) (Exemption 5: on the authority of the district court decision in Dow Jones & Co. v. Department of Justice, holds that written communications between an agency and Congress are entitled to protection under the deliberative process privilege).

Morgan v. Dep't of Justice, No. 89-0527 (D.D.C. Oct. 13, 1989) (jurisdiction: federal appeals court's order placing a document under seal is not subject to collateral attack in this court under the FOIA).

N.C. Network for Animals v. USDA, No. 89-630 (E.D.N.C. Dec. 21, 1989) (Exemption 4: the release of financial information -- the number of animals sold and the total gross sales income -- from the 1987 annual reports filed by licensed animal dealers in North Carolina would cause substantial competitive harm) (adequacy of affidavit: elaborate detail is not necessary to show competition or the threat of injury in cases involving the commercial information exemption to the FOIA) (waiver of exemption: the release of unredacted annual reports in the past is irrelevant to the inquiry of whether the reports at issue here should be released).

Oakland Tribune v. SBA, No. C89-2997 (N.D. Cal. Dec. 6, 1989) (Vaughn Index: grants plaintiff's motion for a Vauqhn Index, but allows defendant agencies to maintain their proposed schedule and submit the Vaughn Index along with their motion for summary judgment).

Oxy USA Inc. v. DOE, No. 88-C-541-B (N.D. Okla. July 13, 1989) (Exemption 5: drafts of a Proposed Consent Order, attorney's opinion of a Proposed Consent Order and the potential risks of litigation, and government attorneys' handwritten notes taken during settlement discussions with a private company are protected by the attorney work-product and deliberative process privileges; preliminary drafts and a final, incomplete draft of a Proposed Remedial Order are protected by the deliberative process privilege; the deliberative process privilege is not waived when several drafts of the Proposed Consent Order are released to the nongovernment party because these orders, by their very nature, require negotiation; government does not need to show the extent to which the draft differs from the final document, because to do so would expose what occurred in the deliberative process).

Payne v. Dep't of Justice, 722 F. Supp. 229 (E.D. Pa. 1989) (Exemption 7 (threshold): the threshold requirement is met by FBI laboratory and fingerprint examinations of evidence collected by local law enforcement agencies) (Exemption 7(D): protects, in their entireties, 2 single-volume files containing requests for examinations of evidence submitted by local law enforcement agencies and the results of FBI examinations; police officers' testimony at trial concerning the physical evidence collected at the crime scene did not waive protection as to all information provided to the FBI by these sources under a guarantee of confidentiality).

Pfeiffer v. CIA, 721 F. Supp. 337 (D.D.C. 1989) (Exemption 5: Internal Investigative Report on the Bay of Pigs operation is not a "final" agency history and is therefore protected by the deliberative process privilege) (Exemption 1 [E.O. 12,356]: CIA staff historian does not have the authority to create an unclassified official history) (Exemption 3 [50 U.S.C. 403(d)(3), 403g]: protect information redacted from a committee report on the Bay of Pigs operation, because plaintiff failed to demonstrate that there had been official CIA disclosure, dissemination, or acknowledgment).

Powell v. Dep't of Justice, No. 86-2020 (D.D.C. Aug. 18, 1988) (magistrate's recommendation) (Exemption 2 "high": administrative markings and computer symbols describing the movements of federal prisoners are "predominantly internal" and disclosure would allow the circumvention of prisoner security procedures; "low": file numbers and routing stamps are trivial internal matters of no genuine public interest; portions of a computer printout and documentation relating to agency's communications with foreign law enforcement agencies are trivial internal matters whose disclosure would permit criminals living abroad to avoid extradition) (Exemption 3 [Rule 6(e)]: agency properly withheld a court transcript that includes the grand jury's evaluation of evidence and conclusions, an outline of the scope and focus of its investigation, and names of unindicted investigative targets and witnesses) (Exemption 5: predecisional deliberations between the United States and Swedish officials concerning plaintiff's request for transfer to Swedish custody did not lose their "predecisional" quality after plaintiff entered his guilty plea; the attorney work-product privilege protects portions of letters Justice Department attorneys exchanged with IRS and State Department attorneys, the Justice Department's draft trial brief, case initiation, and draft versions of 2 case indictment forms outlining specific investigative techniques, 66 pages of attorney notes and correspondence prepared before trial, and 10 pages of legal memoranda) (Exemption 6: protects the names of the clerks who processed plaintiff's FOIA and criminal records) (Exemption 7 (threshold): requirement met by records compiled when agencies were investigating plaintiff for possible violations of racketeering, tax, and narcotic laws) (Exemption 7(C): protects the names of government clerical employees, inmates and civilian informants, and unindicted criminal suspects) (Exemption 7(D): names and information provided by sources should remain exempt from disclosure because the informants, third-party sources, and nonfederal and foreign law enforcement agencies expected confidentiality when they decided to cooperate with the investigation) (Exemption 7(E): withholds secret, but not novel, law enforcement technique used in international drug law cases), adopted (D.D.C. Oct. 31, 1989).

Ray v. Dep't of Justice, 716 F. Supp. 1449 (S.D. Fla. 1989) (attorney fees: plaintiff has substantially prevailed because the agency did not produce the requested documents until ordered to do so by this court; the public benefitted from this FOIA request because of the public interest in the safe relocation of Haitians and in the granting of asylum to immigrants; the government failed to present a compelling reason for its delay in producing the documents; awards $2700 in attorney fees and $139 in costs) (sanctions: a material issue of fact remains whether the government acted arbitrarily or capriciously with respect to the withholding of the requested documents).

Raytheon Co. v. Dep't of the Navy, No. 89-2481, 1989 WL 550581 (D.D.C. Dec. 22, 1989) ("Reverse" FOIA/Exemption 4: in a case where the successful bidder on a government contract sought an unsuccessful bidder's bottom-line prices, the court held that there was "actual competition" because contracting firms who seek substantial government contracts, subject to options and/or renewals, may compete on and off for various purchasers or markets through the years; the release of unsuccessful bidder's bottom-line prices would pose a "likelihood of substantial competitive harm," because they can be used to derive pricing strategies, which would be harmful to the company's competitive position; the public interest in disclosure of unsuccessful bidder information is slight).

Reliance Elec. Co. v. Consumer Prod. Safety Comm'n, No. 87-1478 (D.D.C. Sept. 19, 1989) ("Reverse" FOIA: the proper standard of review in this "reverse" FOIA case is the Administrative Procedure Act's arbitrary and capricious standard; the Commission's decision to release information concerning its investigation of company's circuit breakers is not arbitrary and capricious and it is in conformity with its regulations).

Retired Officers Ass'n v. Dep't of the Navy, 716 F. Supp. 662 (D.D.C. 1989) (Exemption 2: to fall within the ambit of the exemption it is not enough that the requested information be generated and used for the purpose of facilitating matters of internal management; the exemption's threshold requirement of pertaining solely to "internal personnel rules and practices" is not met by a mailing list of names and addresses of retired or retiring military officers; there is a significant public interest in the disclosure of the mailing list to a nonprofit association which was formed to promote the interests of retired or retiring military officers) ("unreasonable" burden: in view of the fact that the information plaintiff is seeking is related to a substantial public interest, the court is not in a position to consider defendant's claim that the processing of plaintiff's request will be administratively burdensome and expensive) (Exemption 6: retired officers' privacy interest in the disclosure of their home addresses is minimal; the test of the exemption does not apply to an invasion of privacy produced as a secondary effect of the release; ignoring the holdings in both Reporters Committee and National Association for Retired Federal Employees v. Horner, orders disclosure of the mailing list, because retired or retiring military officers are benefitted by plaintiff's lobbying efforts and the services it provides).

Rush v. Dep't of State, 716 F. Supp. 598 (S.D. Fla. 1989) (not an "agency record" defense: secret correspondence between plaintiff, a former United States Ambassador, and Henry Kissinger, then-Assistant to the President for National Security Affairs, concerning Quadripartite Negotiations on the status of Berlin are "agency records" under the FOIA because the Department of State is the only entity that has exercised control over the documents since it obtained them in 1977).

SafeCard Servs., Inc. v. SEC, No. 84-3073 (D.D.C. Aug. 18, 1989) (Exemption 5: some meeting minutes meet the "predecisional" requirement of the deliberative process privilege because during this portion of the meeting staff attorneys made recommendations as to whether certain injunctive proceedings should be taken; the deliberative process privilege protects the FTC's responses to the SEC's questions and internal SEC discussions on whether a preliminary prospectus filed by SafeCard Services violated the Truth-in-Lending Act; the deliberative process privilege protects a document preceding a Commission decision on whether to grant immunity to a witness; a request from another agency for access to SEC files, an SEC request form seeking information about the qualifications of an individual, and the response to that request are not deliberative documents; a document discussing whether the release of a transcript of a witness's testimony would harm an investigation and one providing recommendations and legal advice to the Commission from staff members are deliberative and need not be released; the attorney work-product privilege is applicable to 2 documents concerning the SEC's investigation of a company for violations of federal securities laws and articulating the particular offenses; the attorney work-product privilege does not protect advice given to a regional office in anticipation of a possible investigation; the attorney work-product privilege applies to 5 documents because it is clear that litigation was a possibility at the time the documents were created; the attorney work-product privilege protects 8 documents that were prepared in connection with litigation or which set forth sufficient facts to allow the court to conclude that litigation was likely, but it does not protect a research memorandum by a law clerk on a legal question) (Exemption 7(C): protects names of witnesses, informants, and third parties in documents relating to potential violations of securities laws; following Reporters Committee, holds that the Commission may categorically redact the names, addresses, and telephone numbers of witnesses, informants, and potential defendants from documents generated by the SEC in the course of a particular investigation) (Exemption 2: documents describing the SEC's methods of investigating potential violations of securities laws and a form stating why SEC staff members decided to close an investigation must be released because the Commission has not demonstrated how the release of these records would lead to circumvention of agency regulations) (Vaughn Index: agency must release 2 documents that were misnumbered in the supplemental Vaughn Index and which the agency, although aware of the typographical error, failed to correct).

Salman v. IRS, No. N-89-117 (D. Nev. July 26, 1989) (grants the defendant agency's motion for summary judgment in this FOIA action because the requested documents have been provided to plaintiff).

San Jose Mercury News v. Dep't of the Navy, No. C88-20300 (N.D. Cal. Nov. 20, 1989) (adequacy of search: the Navy's interpretation of the FOIA request was unreasonable -- the initial request for documentation of "punishments" of recruiters was construed to mean matters that were currently under investigation, on appeal it was limited to fabrications and falsifications of documents; the Navy denied the initial FOIA request without conducting or ordering any search, when the documents did in fact exist; even though the Navy eventually produced the documents showing recruiter punishments for the years 1985-87, the delay in producing these documents cannot be justified) (Exemption 7(A): the Navy failed to show how the earlier release of records or the release of records still being withheld could have interfered with ongoing investigations).

Scarbrough v. Hertz, No. 88-1125 (W.D. Tenn. Sept. 28, 1989) (in camera inspection: court makes its decision based on the court record, since the agency has adequately described the contents of the requested letter and plaintiff has presented no evidence of bad faith) (Exemption 7(D): in a case involving unsolicited information received in the mail, the informant demonstrated that he clearly intended that his identity remain secret by marking the envelope "Confidential" and "Personal Only").

Schmerler v. FBI, No. 87-3101 (D.D.C. Oct. 26, 1989) (attorney fees: there is no precedent for awarding fees to an attorney for representation in a FOIA proceeding where the attorneys chose to avoid an appearance during presentation of the case on its merits; the court, in its discretion, denies attorney fees to both the pro se plaintiff and his counsel because plaintiff deceived the court and the defendant agency in falsely claiming that he was not represented by counsel when (the court concludes) he was; additionally, the pro se plaintiff is denied attorney fees because of inadequate documentation -- he failed to keep track of his time in sufficient detail and because his work overlapped his counsel's work; grants plaintiff only minimal costs, pursuant to Rule 54(d)).

Schmerler v. FBI, No. 87-3101 (D.D.C. Nov. 15, 1989) (attorney fees: upon plaintiff's motion for reconsideration, vacates the "factually inaccurate and incomplete" October 28, 1989 memorandum and order in which attorney fees were denied to pro se plaintiff and his counsel).

Shaw v. Dep't of Justice, No. 88-1049-W-9 (W.D. Mo. July 31, 1989) (summary judgment: summary judgment granted to the defendant agency because the records have been searched in accordance with plaintiff's request and the only item located is already in plaintiff's possession).

Simpson v. Dep't of Justice, No. 88-2249 (D.D.C. Sept. 27, 1989) (Exemption 7 (threshold): requirement met by records that were compiled in connection with the FBI's investigation of a bank robbery) (Exemption 7(C): the disclosure of an FBI Special Agent's name is both "potentially prejudicial to that agent's effectiveness in the field and inherently dangerous"; "it would be a drastic blow to the effectiveness of the FBI if the names of confidential informants were subject to disclosure") (Exemption 7(D): the disclosure of information provided by a confidential source may lead to the identification of that source; exemption protects information provided in confidence by a bank) (Exemption 7(E): although many security techniques are common knowledge, the use of a specific security technique in a particular situation (in this case, a bank) is not common knowledge and is properly withholdable) (in camera inspection: denies plaintiff's request for in camera inspection because the defendant agency has met its burden through sufficiently detailed affidavits).

Southam News v. INS, No. 85-2721 (D.D.C. Aug. 30, 1989) (Exemption 7(C): following Reporters Committee and Halloran v. VA, Judge Harold H. Greene is persuaded to change his ruling and now holds that the agency may withhold the identities of clerical employees who did administrative work in connection with official FBI investigations).

Summers v. Dep't of Justice, 729 F. Supp. 1379 (D.D.C. 1989) ("exceptional circumstances"/"due diligence": grants defendant agency's request for an Open America stay; a publication contract deadline is not a valid basis for expedited processing).

Weisberg v. Dep't of Justice, 720 F. Supp. 1 (D.D.C. 1989) (attorney fees: "there is overwhelming proof that contingent fee cases against the government are eschewed by the trial bar unless . . . the client will make part payment to mitigate the losses if the action is unsuccessful, or that an enhancement fee may be recovered from the government if the plaintiff prevails"; grants plaintiff additional counsel fees for work done to date and then subjects the entire fee to a 50% enhancement).

Willens v. NSC, 720 F. Supp. 15 (D.D.C. 1989) (Exemption 1: orders in camera inspection of unredacted documents to determine whether the information within the withheld records has been released by other agencies and, if so, whether the defendant agency's criteria for withholding the documents in the first instance is related to a properly invoked Exemption 1 claim).

Willens v. NSC, 726 F. Supp. 325 (D.D.C. 1989) (Exemption 1 [E.O. 12,356]: defendant agency properly withheld documents relating to the negotiations between the United States and the Northern Mariana Islands from 1972-75) ("no records" defense: there are no records responsive to plaintiff's FOIA request in the "White House" or "presidential" files).

Wilson v. Dep't of Justice, No. 87-2415, 1989 WL 298673 (D.D.C. Sept. 12, 1989) (attorney fees: court's May 2, 1989 order granting plaintiff a waiver of search and copying fees entitles plaintiff to recover interim attorney fees; plaintiff's journalistic scholarly interest in these documents is not frivolous or commercial; even though defendant agency's position was not unreasonable, plaintiff's position had greater merit; interim fee is subject to a 50% enhancement because of counsel's contingency fee arrangement; grants defendant a 10% reduction in the number of hours that plaintiff claimed for reimbursement, because some of the time spent at the early stages of this case involved 2 agencies whose fee issues were not litigated; grants $11,100 in interim attorney fees and $120 in costs).  (posted 12/5/03)


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